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Poster: Administrator, Curator, or StaffForrest O. Date: Nov 9, 2003 4:43pm
Forum: opensource_movies Subject: Re: Is this fair use for music?

I think the safest answer is no.

In all likelyhood, if you are not selling it you won't be sued. However, if you want anybody to distribute it (including archive.org, I'd be willing to bet) you need to secure permission in writing to use the recording.

I might be wrong.

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Poster: ridetheory Date: Apr 18, 2004 2:17am
Forum: opensource_movies Subject: Re: Is this fair use for music?

(This is from U.S. Code, Title 17, Chapter 1, Section 107. The comments in parentheses are mine.)

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(This doesn't mean you can get away with it just because it's non-commercial, by the way. The court would be looking for your intent.)

(2) the nature of the copyrighted work;

(...and the nature of your work. If you made a new song as a commentary on the original song, your case would be strong. If you use the song as commentary on what's happening in the film, you may have a case, but it would be weak.)

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole;

(Are you using the whole song? While this might weigh against you, it's still allowable under certain circumstances -- if you need to take the heart of the piece to create a parody, for example. If the court thinks that you just took it to steal it, instead of transforming it, you will be out of luck. In your case, it sounds like you're using the song without paying a licensing fee, which I THINK should be allowed as long as it is commentary, but the law doesn't reflect my beliefs.)

(4) the effect of the use upon the potential market for or value of the copyrighted work.

(This is what to worry about. Even though you may have the right to re-use the material, a record label might throw an expensive lawsuit your way, claiming that you diminished the value of the original work -- which, believe it or not, has actually been allowed under fair use. Your rights will be smothered under a dogpile of lawyers, fair use or not. Bear in mind that while fair use is a right under U.S. copyright law, that right only really manifests itself as a defense in civil cases. No fun at all. BE CAREFUL!)

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